Jeffrey Patrick Gunderson, M.D.; Revocation of Registration

DEPARTMENT OF JUSTICE

[Docket No. 94-36]

Jeffrey Patrick Gunderson, M.D.; Revocation of Registration

On March 11, 1994, the Deputy Assistant Administrator (then

Director), Office of Diversion Control, Drug Enforcement Administration

(DEA), issued an Order to Show Cause to Jeffrey Patrick Gunderson,

M.D., (Respondent) of Brunswick, Georgia, notifying him of an

opportunity to show cause as to why DEA should not revoke his

Certificate of Registration, BG1368516, under 21 U.S.C. 824(a), and

deny any pending applications for registration as a practitioner under

21 U.S.C. 823(f), for the following reasons:

(1) On August 3, 1992, the Respondent was arrested in St. Paul,

Minnesota, for felony possession of LSD, a Schedule I controlled

substance, and, at the time of his arrest, he had in his possession

LSD, marijuana, and Didrex;

(2) On September 9, 1992, the Respondent pled guilty in state court

to a felony charge of possession of a controlled substance, and was

convicted of this offense in November of 1992;

(3) In April of 1993, the Respondent was observed inhaling cocaine

several hours prior to reporting for duty as an emergency room

physician;

(4) On several occasions during 1993, the Respondent discussed

plans to purchase and distribute cocaine with confidential informants;

and

(5) During recent undercover operations, the Respondent was in

possession of cocaine and LSD.

On April 15, 1994, the Respondent, through counsel, filed a timely

request for a hearing, and following prehearing procedures, a hearing

was held in Atlanta, Georgia, on October 26, 1994, before

Administrative Law Judge Mary Ellen Bittner. At the hearing, both

parties called witnesses to testify and introduced documentary

evidence, and after the hearing, counsel for both sides submitted

proposed findings of fact, conclusions of law and argument. On October

31, 1995, Judge Bittner issued her Opinion and Recommended Ruling,

recommending that the Respondent's DEA Certificate of Registration be

revoked and any pending applications for registration be denied. On

December 1, 1995, Judge Bittner transmitted the record of these

proceedings to the Deputy Administrator, after noting that neither

party had filed timely exceptions to her decision. However, on December

20, 1995, Judge Bittner transmitted the Respondent's request for

consideration of exceptions filed on December 18, 1995. A copy of Judge

[[Page 26209]]

Bittner's letter and the Respondent's exceptions were transmitted to

Government counsel, who did not respond.

The Deputy Administrator has considered the record in its entirety,

including the Respondent's exceptions, and pursuant to 21 CFR 1316.67,

hereby issues his final order based upon findings of fact and

conclusions of law as hereinafter set forth. The Deputy Administrator

adopts, in full, the Findings of Fact Conclusions of Law, and

Recommended Ruling of the Administrative Law Judge his adoption is in

no matter diminished by any recitation of facts, issues and conclusions

herein, or of any failure to mention a matter of fact or law.

The Deputy Administrator finds that, pursuant to stipulations made

by the parties before Judge Bittner, the following facts are not in

dispute: (1) Lysergic acid diethylamide (LSD) is a Schedule I

hallucinogenic substance pursuant to 21 CFR 1308.11; (2) Marijuana is a

Schedule I hallucinogenic substance pursuant to 21 CFR 1308.11; and (3)

Didrex is the trade name for a stimulant containing benzphetamine

hydrochloride, a Schedule III substance pursuant to 21 CFR 1308.13.

The Deputy Administrator also finds that the Respondent is

primarily an emergency room physician, and that at the time of the

events at issue, he lives and worked on St. Simons Island, Georgia. He

is licensed to practice his specialty in the State of Georgia. The

Respondent is registered with DEA as a practitioner, and he has been

assigned DEA registration number BG1368516.

It is undisputed that the Respondent was arrested early in the

morning on August 18, 1992, in St. Paul, Minnesota. The relevant

portions of the arrest report state that: (1) The arresting officer

followed the Respondent because he made a turn over the center median

after driving out of a Denny's Restaurant parking lot; (2) the

arresting officer noted that when the Respondent got out of his car,

his eyes were red and his speech was slurred; (3) arresting officer

asked the Respondent to sit in the patrol car because the Respondent

had stated he was lost, could not find his hotel, and did not have his

driver's license; (4) when the arresting officer asked the Respondent

what was in his pockets, the Respondent pulled out, among other things,

a bag containing marijuana and a piece of tin foil containing a white

sheet of paper with 43 ``hits'' of LSD; and (5) when the arresting

office asked what the sheet of paper was, the Respondent replied,

``something I'm not supposed to have,'' and that ``it's some kind of

psychedelic drug.'' The Respondent was arrested and charged with felony

possession of a controlled substance.

Also, at the time of his arrest, the Respondent had in his

possession a prescription bottle containing Didrex with a label noting

that the prescription had been written by the Respondent for a third

party, LW. The Respondent later explained that LW was his girlfriend,

that he had used her suitcase for his trip to St. Paul, and that the

prescription bottle was in her suitcase when he borrowed it.

Before Judge Bittner, the Respondent, testified that at the time of

his arrest, he was in Minnesota for a reunion of his college football

team, that he had been to a party and then to a restaurant, and that he

was on his way back to his hotel to get his luggage and to leave for

the airport. The Respondent stated that he had found the LSD and the

marijuana while cleaning out the rental car prior to turning it in at

the airport, that he had put it in his pocket, and that he was arrested

with the substances in his pocket. He also testified that the

prescription bottle had fallen out of his girlfriend's suitcase, that

he had found the bottle while cleaning out the truck of the car, and

that he had put it in his pocket.

On September 9, 1992, the Respondent pled guilty to possession of

LSD in state court. On November 17, 1992, pursuant to a state statute

permitting a stay of adjudication, the Respondent was sentenced to five

years' probation, fined more than $4,200.00, and ordered (1) to verify

completion of chemical treatment; (2) to abstain from (the consumption

of) non-prescription drugs; and (3) to follow all recommendations of

the Georgia Professional Licensing Board.

The Respondent testified before Judge Bittner that, after his

arrest in Minnesota, he had returned to Georgia and had reported for

work. After about a week at work, he told his supervisor and other

supervisory hospital staff about his arrest, and he agreed with them

that he should voluntarily submit to a screening procedure. The

Respondent stated that he went to Willingway Hospital (Willingway) for

an evaluation, and that the was advised on the first day of the

evaluation that he had a drinking problem and should enter the

hospital's twenty-eight day treatment program. The Respondent entered

the program and was discharged on October 18, 1992. However, the

Respondent testified that after a lengthy delay, Willingway Hospital

submitted an inaccurate evaluation report to the Georgia Board of

Medical Examiners (Board) in December of 1992.

By letter dated July 15, 1993, the Georgia Department of Law

advised the Respondent that the Georgia Attorney General took the

position that state statutes required the suspension of his medical

license for at least three months because of his entry of a guilty plea

for possession of LSD in Minnesota. Further, the letter noted that the

Impaired Physician's Committee recommended that the Respondent's

license be placed on probation with the usual terms and conditions for

an impaired physician. As an alternative, the letter provided that, if

the Respondent voluntarily submitted to an evaluation at Anchor

Hospital (Anchor), and if Anchor concluded that the Respondent was not

impaired, then the Board would not require a probationary period.

According to a discharge summary, the Respondent was evaluated at

Anchor from August 30, 1993, until September 2, 1993. The summary

concluded that ``no definitive diagnosis of alcohol or substance

dependence can be made.''

After notice and a hearing, the Board issued a final decision on

July 11, 1994, finding that the Respondent had entered a plea to a

felony charge of possession of LSD and was sentenced in Minnesota. The

hearing officer noted that pursuant to Minnesota law pertinent to the

Board's proceedings, ``conviction'' includes entering a ``plea of

guilty * * * regardless of whether the adjudication of guilt or

sentence is withheld or not entered thereon * * *.'' Thus, the

Respondent's entry of a guilty plea provided grounds for the Board's

sanction. Consequently, the Board suspended the Respondent's license to

practice medicine in Georgia for three months and then placed his

license on probation for four years following the suspension. Also, as

part of the terms of the probation, the Respondent (1) was to be

subject to random drug screening at the request of the Board, and (2)

was to abide by all State and Federal laws relating to drugs. The

Respondent testified before Judge Bittner that he was still fulfilling

these probationary requirements.

A DEA task force officer (Officer) testified before Judge Bittner,

stating that in the Spring of 1993, the Brunswick, Georgia, Police

Department initiated an investigation of the Respondent, and that she

participated in an undercover capacity. She testified that she had been

assigned to the task force for approximately three and a half years.

Specifically, the Officer testified that on April 21, 1993, she

accompanied

[[Page 26210]]

a confidential informant (CI) to a tavern on St. Simon's Island to meet

the Respondent, and that several hours later the CI, the Respondent,

and the Officer went to the Respondent's residence. The Officer

testified that, while there, she observed the Respondent use cocaine

approximately two or three times, and she observed him search for some

LSD, which he told her he had placed on his kitchen counter. The

Officer testified that she saw the Respondent take ``the cocaine out of

a plastic bag, pour it into his hand and snort it out of his hand * *

*'' She stated she knew the substance was cocaine ''just from the

appearance of it, through my experience; the way it was consumed. Also

the fact that (the Respondent) did kiss me on the lips and it number

out my face.'' Regarding the LSD, the Officer testified that on April

29, 1993, the CI telephone the Respondent, and in that taped

conversation, the Respondent stated that he had found the LSD.

The Officer further testified that on July 21, 1993, the CI,

wearing a recording device, went to another residence owned by the

Respondent, under the surveillance of the Officer and other law

enforcement personnel. According to the transcript of this transaction

with the Respondent, the CI asked the Respondent if he would be

interested in some ``kilos'' for ``17 a key,'' and the Respondent

replied that he did not have that much money, and that his friends in

the police department had warned him ``to be real careful'' because the

police were watching him. The CI said that his source wanted a down

payment of $4,000.00, to which the Respondent answered, ``Damn! I wish!

I could (sic) I need to make some money, somewhere,'' and that he would

think about it. The Respondent also said, ``I know four people that

have been busted. I don't know who's turning everybody in but somebody

is * * *. I don't do it around nobody anymore.'' The Respondent also

informed the CI that he would be in Savannah, Georgia, the next weekend

because his son was playing in a baseball game, and he suggested

getting together with the CI on Friday night to ``party up there.''

However, before Judge Bittner, the Respondent testified that he did not

agree to be involved ``in a kilogram deal * * * of controlled

substances with the CI.''

The Officer further testified that on July 23, 1993, the Respondent

met with the CI and another informant (Informant), at the Radisson

Hotel in Savannah. The transcript of the tape recording made during

that meeting revealed that, among other things, the Informant said he

had recently ``got a pretty big * * * shipment from Columbia,'' and

that the Respondent replied ``we may be able to do something,'' but

that he would have to talk to a ``friend,'' and ``I'd like to make some

money myself.'' Later, the Respondent expressed concern, stating ``I

just can's deal with it with my job and stuff. You know I don't have

time to do too much * * *. But, uh, I certainly would like to * * *.''

The Respondent also stated that, ``I'm certainly, uh, not opposed to

making some money.'' The respondent also stated that he had connections

in Minnesota through his high school and college friends, and he asked

the Informant if he would ``be around tonight'' for a drink.

Finally, the Officer testified that in August of 1993, the CI

visited the Respondent, and in the course of that conversation, he

asked the Respondent if he was going to buy cocaine from the Informant.

The Officer testified that the Respondent replied that ``his connection

was retired, that he thought he could get cocaine distributed through,

and he was no longer in the drug business. And so he had no way of

getting rid of the cocaine.'' Significantly, Judge Bittner wrote that

``[the] Officer appeared candid and to exhibit good recall[,] and I

therefore credit her testimony.''

The Respondent testified before Judge Bittner, stating that he

first met the Officer on April 23, 1993, that he had not seen the CI

for almost a year, and that he had invited the CI to his home in the

hope of getting him to repay a loan. The Respondent denied using

cocaine that evening.

The Respondent also testified that, when he knew the CI before,

``he never talked about drugs * * *'' but ``all of a sudden every time

[the CI] called me * * * He was just, I mean, continually talking about

drugs and * * I didn't know if he had just changed or what was going

on.'' The Respondent also testified concerning the July 23, 1993

conversation, stating that he thought the CI was going to repay a loan,

but that, when the Respondent went to the CI's room, he ``realized the

position [he] was in--I mean, standing here with some Columbian [the

Informant] and I didn't know if he had a gun or what else, he was

talking about selling me drugs--all I wanted to do was to get out of

the room.'' However, the Respondent testified that later that evening,

he went in a cab to a bar with the Informant, and that after the

Informant became inebriated, the Respondent left him in the bar. Later

the same evening, the Respondent invited the Informant up to his room.

The Respondent testified that, while the Informant was in his room, he

was trying to ``grab'' his girlfriend, and then the Respondent

testified that ``I told him specifically, word for word, I said, I

don't know what [the CI] told you why I'm here. I said, I'm here to see

my son play baseball and to get the $400.00 from [the CI] and then I

threw [the Informant] out of my room.''

Finally, the Respondent testified that in August of 1993, he called

a local police officer and told him that the CI had continued to call

him and talk about drugs. Also in the record is an affidavit from a

sergeant of the Brunswick Police Department, which corroborated the

Respondent's testimony concerning his call to the police. The

Respondent also testified that from August 18, 1992, until the date of

the hearing, he had not purchased, sold, or used any controlled

substances.

However, the Deputy Administrator notes Judge Bittner's statement

that:

At the outset, I note that I did not find (the) Respondent to be

a credible witness. He did not appear forthright or candid, portions

of his testimony are contradicted by the documentary evidence (,)

and he appeared primarily concerned with tailoring his testimony to

suit his defense. As noted above, I found [the] Officer ( ) to be a

credible witness. Consequently, where (the) Respondent's testimony

conflicts with that of (the) Officer ( ), I credit the latter.

The Respondent also offered into evidence letters from colleagues,

attesting to his professional credentials, and his exemplary abilities

as an emergency room physician. Other physicians who had monitored his

practice also wrote, stating that he was complying with his conditions

of probation. One of these letters was from the medical director of the

Respondent's physicians' group, who wrote that ``at no time do I feel

that (the Respondent) has ever been in an impaired position.'' He also

noted that the Respondent had negative drug test results on November 6,

1993, November 19, 1993, January 7, 1994, and February 21, 1994.

Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy

Administrator may revoke a DEA Certificate of Registration and deny any

pending application for registration as a practitioner, if he

determines that the continued registration would be inconsistent with

the public interest. Further 21 U.S.C. 824(a)(2) provides that

conviction of a felony relating to any controlled substance is also

grounds for revoking a DEA registration.

First, as to the Respondent's ``conviction'', the Respondent argued

that he should not be considered ``convicted'' because, pursuant to his

plea bargain, and under Minnesota law, if he successfully completes his

[[Page 26211]]

probation, the case will be dismissed. However, the Deputy

Administrator agrees with Judge Bittner, who wrote, ``that provision of

State law does not determine what is a ``conviction'' within the

meaning of the Controlled Substances Act. This agency has previously

held that a guilty plea is a conviction for purpose of these

proceedings. Eric A. Baum, M.D., 53 Fed. Reg. 47272 (DEA 1988). I

therefore find that (the) Respondent's conviction constitutes grounds

for revoking his DEA registration pursuant to 21 U.S.C. 824(a)(2).''

Judge Bittner also found that the Respondent's continued

registration was contrary to the public interest. In determining the

public interest, Section 823(f) provides that the following factors be

considered:

(1) The recommendation of the appropriate State licensing board or

professional disciplinary authority.

(2) The applicant's experience in dispensing, or conducting

research with respect to controlled substances.

(3) The applicant's conviction record under Federal or State laws

relating to the manufacture, distribution, or dispensing of controlled

substances.

(4) Compliance with applicable State, Federal, or local laws

relating to controlled substances.

(5) Such other conduct which may threaten the public health or

safety. These factors are to be considered in the disjunctive; the

Deputy Administrator may rely on any one or a combination of factors

and may give each factor the weight he deems appropriate in determining

whether a registration should be revoked or an application for

registration denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16422

(1989).

In this case, the Deputy Administrator finds relevant factors one,

four, and five in determining whether continuing the Respondent's

registration would be inconsistent with the public interest. As to

factor one, ``recommendation of the appropriate State licensing

board,'' the record contains no direct recommendation from the Board to

the DEA on this matter. However, it is significant that, after

notification of the Respondent's entry of a guilty plea to possession

of LSD in Minnesota, the Board suspended the Respondent's medical

license for three months and placed it on probation for an additional

four years.

As the factor four, the Respondent's ``(c)ompliance with applicable

State, Federal, or local laws relating to controlled substances,'' and

factor five, ``(s)uch other conduct which may threaten the public

health or safety,'' the Deputy Administrator agrees with Judge

Bittner's finding, given her credibility assessment of the Respondent

and the Officer, that the Government has shown, by a preponderance of

the evidence, that the Respondent consumed cocaine and searched for LSD

in the presence of the officer on April 21, 1993. Although the

Respondent argued that he would not engage in such conduct, given that

he was providing random urine samples for drug screening, the Deputy

Administrator finds his argument unpersuasive. The record shows that

the first negative drug screening result was reported on November 6,

1993, and that the Board did not even issue its decision ordering

random screening until July 11, 1994. Thus, there was no evidence of

record showing that the Respondent was required to participate, or was

voluntarily participating in, random drug testing on April 21, 1993.

Next, the Respondent testified that he was an unwilling participant

in the CI's plan to distribute cocaine. However, the Deputy

Administrator finds that the record supports an opposite conclusion.

The transcripts of the Respondent's conversation with the CI and the

Informant indicate the Respondent's actual desire to participate in the

plan. The Respondent's reply to the CI's information concerning the 17

kilogram of cocaine transaction was ``I wish! * * * I need some money *

* *'' Such a response showed his willingness to participate, if he had

had the resources for the downpayment needed to obtain the controlled

substance. Further, the Respondent's conversation with the Informant

indicated that he did not participate in this proposed transaction

because of a lack of means to distribute the controlled substance. The

Deputy Administrator agrees with Judge Bittner's conclusion, that

``(t)hese statements are not those of someone who is uncertain as to

why he is a party to a drug-related conversation.''

As to rehabilitation, the Deputy Administrator acknowledges the

Respondent's evidence of his professional competency as an emergency

room physician. Also, the Deputy Administrator notes that the

Respondent argued that rehabilitative evidence exists, such as (1) a

lack of positive urinalysis results, (2) the fact that he had never

been in trouble before his illegal conduct in Minnesota, (3) the lack

of substantiation of the allegations of drug or alcohol abuse, and (4)

the Respondent's report of the CI's conduct to the local police.

However, the Deputy Administrator also notes Judge Bittner's

credibility finding, after observing the Respondent testify before her.

Also, although the more recent drug testing evidence may show that the

Respondent, while on probation and subject to random drug screening

tests, has abstained from personal consumption of illegally obtained

controlled substances, the Deputy Administrator is still concerned

about the Respondent's willingness to participate in conversations

concerning illegal drug transactions to others. Further, the Respondent

showed no remorse concerning his prior documented misconduct. Rather,

in his testimony before Judge Bittner, the Respondent continued to deny

any intentional wrongdoing. In previous cases, when a Respondent failed

to admit to the full extent of his involvement in documented misconduct

involving controlled substances, the Deputy Administrator has then

doubted such a Respondent's commitment to compliance with the

Controlled Substances Act in future practice. See, e.g., Prince George

Daniels, D.D.S., 60 FR 62,884 (1995). Given the totality of the

circumstances in this case, the Deputy Administrator agrees with Judge

Bittner's conclusion that he ``Respondent is not in a position to

accept the responsibilities inherent in a DEA registration, and that

his continued registration would be inconsistent with the public

interest.''

The Respondent filed exceptions to Judge Bittner's opinion, taking

exception with her finding concerning a felony ``conviction'' in

Minnesota. The Deputy Administrator notes the Respondent's concern and

made findings accordingly in this order. The remaining exceptions are

of record and require no further comment.

Accordingly, the Deputy Administrator of the Drug Enforcement

Administration, pursuant to the authority vested in him by 21 U.S.C.

823, and 28 C.F.R. 0.100(b) and 0.104, hereby orders that DEA

Certificate of Registration BG1368516, previously issued to the

Respondent, be, and it hereby is, revoked, and that any pending

applications to renew the same are hereby denied. This order is

effective June 24, 1996.

Dated: May 17, 1996.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 96-13051 Filed 5-23-96; 8:45 am]

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